General protections dismissal

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Introduction

their employment has been terminated at the initiative of the employer, or

they have resigned their employment but the resignation was forced by something the employer did.

If you have been dismissed from your employment you may be able to make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws. Applications under these laws must be received by the Fair Work Commission within 21 days of your dismissal taking effect.

To understand the key differences between these applications, and to decide whether one of these applications may be appropriate for you, see the Termination of employment page.

If eligible, you can make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws:

What are general protections?

provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.

A person (such as an employer), must not take any 'adverse action' against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.

Adverse actions that can be taken against an employee or potential employee might include:

dismissing them

not giving them their legal entitlements

changing their job to their disadvantage

treating them differently than others

not hiring them

offering them different (and unfair) terms and conditions, compared to other employees.

Find out more

The Fair Work Commission has created a General Protections Benchbook which contains detailed information and links to cases setting out eligibility and the Commission process, including information on objections.

Workplace rights

Workplace rights include:

receiving a benefit or having a role or responsibility under a workplace law (such as the Fair Work Act 2009), a workplace instrument (such as a modern award or enterprise agreement), or an order made by an industrial body (such as an order made by the Commission)

commencing or participating in a process or proceeding under a workplace law or instrument, such as taking court action

being able to make a complaint or inquiry about your employment.

Industrial activities

A person must not take adverse action against another person because they engaged in or proposed to engage in industrial activity (such as belonging to or participating in a union), including refusing to participate in any industrial action.

becoming or not becoming a member of industrial associations (e.g. unions and employer associations)

representing or advancing the views, claims or interests of an industrial association

taking part in protected industrial action, or

refusing to take part in industrial action.

Protection from discrimination

An employer also must not take adverse action against an employee because of an attribute of that person, including their:

race

colour

sex

sexual orientation

age

physical or mental disability

marital status

family or carer's responsibilities

pregnancy

religion

political opinion

national extraction

social origin.

Sham contracting arrangements

An employer must not tell an employee that they are being hired as a contractor if they are really an employee. An employer must not dismiss or threaten to dismiss an employee in order to hire them as an independent contractor doing the same or substantially the same work.

Who do general protections laws apply to?

General protections laws apply to:

employees and prospective employees

employers and prospective employers

independent contractors and prospective independent contractors

a person who has entered into or who has proposed to enter into a contract for services with an independent contractor

an industrial association, including an officer or member of an industrial association.

General protections laws provide protection from a range of actions (explained below) taken by, or that affect (or that could or are intended to affect, or are threatened to affect) constitutionally-covered entities, employers in the ACT or Northern Territory, or other trade or commerce employers. They also protect from actions taken in a territory or a Commonwealth place.

A constitutionally covered entity can be any of the following:

a constitutional corporation, which can either be a trading or financial corporation formed in Australia, or a foreign corporation that does business in Australia. They are often recognisable by having Proprietary Limited, Pty Ltd, Limited, Ltd, Incorporated or Inc. after their name

What it means to me

If you've received notice from the Fair Work Commission about a general protections application relating to dismissal (ending employment), it means:

Someone believes that you or your company ended their employment unfairly

because they tried to, or planned to, exercise a workplace right (eg asking about their pay or working conditions), or

for discriminatory reasons (eg based on their race, sexual orientation, age, religion, etc), or

because they exercised, or tried to exercise, their freedom of association (eg right to join a union or to take part in protected industrial action).

By applying to the Commission they have started a legal action against you.

No decision has been made, or result determined yet.

You have the right to respond to the application using the correct form/s, including outlining why you may object to the application. The Commission needs this information to progress (or, if appropriate, close) the application.

You or your company will then be given a time and date for a conference – where a Commission Member or Commission staff conciliator will try to help both sides work out a way to resolve their dispute without the need for a more formal court hearing.

If the dispute cannot be resolved, and both sides agree, the Commission will hold a formal hearing and make a final decision about the matter.

If one or both sides do NOT agree that the Commission should make a decision, then the applicant may apply to the Federal Circuit Court or the Federal Court for a final decision.

If you think your employment ended unfairly (you were dismissed or your employment was terminated unfairly):

because you tried to, or planned to, exercise a workplace right (eg asking about your pay or working conditions), or

for discriminatory reasons (eg based on race, sexual orientation, age, religion, etc), or

because you exercised, or tried to exercise, your freedom of association (eg right to join a union or to take part in protected industrial action).

You can start a legal action against your employer by applying to the Fair Work Commission using the correct form and paying a fee.

The Commission will send a copy of your application to your former employer, and they will be given the chance to respond to your application.

You will then be given a time and date for a conference – this is where a Commission Member or Commission staff conciliator will try to help both sides work out a way to resolve their dispute without the need for a more formal court hearing.

If the dispute cannot be resolved, and both sides agree, the Commission will hold a formal hearing and make a final decision about the matter.

If one or both sides do NOT agree that the Commission should make a decision, then you may apply to the Federal Circuit Court or the Federal Court for a final decision.

Last updated

16 February 2017

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